Is the main debate here over whether this is libel per se or just libel in general?
From what I gather here a libel per se case would be the only one worth pursuing here because (if she won) she could get a damage award without having to show actual damage. However, the claim for libel per se seems in doubt.
Would a straight libel case be “easier” to win? I realize her showing actual damages in this case would probably be far fetched but in theory, if she could, would she stand a better chance in this instance?
It seems that your quote has an opinion that a suit would not be viable, and that such a suit would embolden others to sue others (using bottom feeding lawyers)
I see phrases in the cite like "some opportunistic ambulance-chaser ", “Butthurt is not defamation.”
I see an opinion that Fluke is a public figure because she testified before congress. That nobody outside of congress had heard of her before Rush’s comments seems to be moot with this author.
I see an opinion that calling Fluke a prostitute who takes money for sex was just “rhetorical hyperbole”
In short, I see a lot of opinions. Many people (including a court perhaps), might not share those opinions.
He’s a humor columnist who writes a weekly column in the Washington Post Magazine, does a comic strip with his son, has monthly on-line chats, and writes the occasional longer article mostly for the Magazine. He took a buyout so he’s working less than he used to. When he’s good he’s amazing! Sometimes he’s so-so. Now and again he lets his views take over the funny. If you read the monthly chat to which the Limbaugh piece was a weekly update, you’ll see a column of his that was spiked. The humor fell really flat until you found out - outside of the column - that he set the whole thing up in advance. Wiki mentions his Pulitzer Prize columns. He also wrote very moving columns about a small town in Alaska he picked at random from an atlas, a town in Nevada he proclaimed “The Armpit of America”, and a child’s entertainer with growing-up issues
But he is more than happy to do the neener-neener thing. IMNSHO the only thing that saves his anti-Limbaugh screed is the links to things Limbaugh actually did.
I don’t think it actually seems that way to you. “So-and-so has an inappropriate number of sexual partners” is clearly a subjective statement. Almost by definition, there is no appropriate number of sexual partners.
It clearly raises the same defamation per se presumption as calling somebody a slut, but as I said, I don’t know anything about Fluke and certainly I’m not qualified to comment on her chastity (or lack thereof).
While the First Amendment may not “only protect courteous speech”, SCOTUS has eviscerated the fighting words doctrine but it certainly hasn’t gotten rid of it.
[QUOTE=Bricker]
Thanks for an excellent link, Kimmy.
[/QUOTE]
Seriously? It’s a fun read, but you would have torn this rubbish apart if somebody had posted it on the Dope in support of the conclusion the author reaches.
The author lays out the reasons why Fluke may have a case for defamation per se, and then handwaves all of them away without any supporting citations (or citations that are utterly irrelevant).
For example:
So… “scam” and “crook” have no settled meaning, and the writer asserts that slut doesn’t have one either; thus, end of story. Mmmkay.
The guy handily refutes his own assertion- that is, assuming a line of reasoning based on Clerks needed refuting.. If most women would say the line is well below 37, then apparently there is a line to be drawn somewhere.
Well, it’s nice that he believes that, but what the fuck does his belief have to do with defamation law? If you weren’t paying attention, you might assume that Bryson and the other cases the author cites and then casually dismisses were decided in 1950. They weren’t; as the author notes, all three opinions were issued in the 1990s.
Fluke testified in front of a dozen House Democrats. I suppose in a technical sense she was “testifying before Congress”, but even that’s hardly a slam dunk. Hell, the only reason any of us know her name is because Rush made her into news. Even if Fluke is a public figure, limited or otherwise, that’s not the end of the analysis. I doubt you would have trouble finding people who think his phrasing is evidence of malice.
Again, the point is not that Limbaugh defamed Sandra Fluke. Maybe she’s a two-bit trash bag ho. The point is that anyone claiming that no-way, no-how did he defame her is jumping to conclusions.
Do you believe it is slanderous to call someone a slut?
It is. But only because it is an accusation that the person is not chaste. To prevail, to speaker would have to show only that the target of his speech was unchaste. Meaning not a virgin.
Do you understand this?
In a civil suit, unlike a criminal trial, the plaintiff and the defendant can both be compelled to answer questions. Merely because she didn’t say in the recorded testimony anything about her sex life does not mean that the subject would be closed. If she sues, she must allege in her complaint that what he said was false.
NOT merely that what he said was never mentioned in her testimony, but actually false. She must allege in her complaint that she is of chaste character.
Do you understand this?
If she does, he is entitled to ask her, under oath, if she is of chaste character. She cannot refuse to answer, unless her answer would expose her to criminal liability, and even then the jury is entitled to be told she did not answer and that they can conclude she would have answered “No.”
First, in no way am I saying she has a case here; I honestly don’t know. However, I think you’re focusing on the wrong thing from WaM’s post. The money-quote is:
I don’t think he could defend against this by asking her if she’s chaste. I don’t even think there’s any question he could ask her to defend against this: if there are no words in which she’s said this, it’s a lie.
But even if he could ask a question, it wouldn’t be, “Are you of chaste character?” It would have to be, “Are you having so much sex that you can’t afford it?”
It does seem to me that, while the claim of prostitution was metaphorical and the claim of sluttiness is opinion, his claims about the frequency of her sex represent a reckless disregard for the truth on his part.
No. Because, as has been pointed out, if one is taking contraception, it is a fixed cost. So ANY amount of sex would trigger the cost that she can’t afford.
It seems to me that Limbaugh made statements he knew to be false, and did so maliciously intending to harm Ms. Fluke. The falsehoods are his completely inaccurate description of her testimony:
“testifies she’s having so much sex she can’t afford her own birth control pills”
“A Georgetown co-ed told Rep. Nancy Pelosi’s hearing that the women in her law school program are having so much sex that they’re going broke”
“Susan Fluke – or Sandra Fluke, whatever her name is – the Georgetown student who went before a congressional committee and said she’s having so much sex, she’s going broke buying contraceptives”
“Georgetown Law student Sandra Fluke said that it’s too expensive to have sex in law school without mandated insurance coverage”
All statements made to intentionally cause harm and while knowing them to be false (or if he argues ignorance, I think it would easy to show reckless disregard). Pretty simple case, it seems to me. It’s a diversion to argue whether calling her a “slut” or a “prostitute” are hyperbolic devices or matters of opinion. He made false malicious statements intended to inflict harm. done.
There are all also a slew of other (probably) easily refutable claims he makes, also meant to disparage and inflict harm. Here’s just two:
He implies she was sexually active as an elementary school child: “Ms. Fluke, who bought your condoms in junior high? Who bought your condoms in the sixth grade?”
Then he gets even more bizarre: “The fact that she wants to have repeated, never-ending, as-often-as-she-wants-it sex – given. No question about that.”
I can’t even bring myself to quote the other stuff he says, but having read his actual commentary about her, and seeing how it’s pretty clearly based on what he knows to falsehood and pretty clearly intended to harm her, I think she would have an excellent case.
On a loosely related note, after reading the media matters list of Limbaugh’s actual words, who could possibly listen to this guy, much less consider themselves a “ditto head”? I actually feel sick that someone who so wallows in hatred and repugnance can have a national following in the millions. It’s not just the rantings of some fringe lunatic - this guy is a “kingmaker” of the right?
Is the information provided in this link accurate?
If so, couldn’t there be a case on the grounds that since her testimony did not reveal any private facts, but Limbaugh revealed that she was unchaste (since that is the legal definition of “slut”, apparently).
That is, in fact, an accurate statement. I should point out we’re no longer talking about slander or libel, but this is an area in which I think a case might have legal sufficiency against Limbaugh. I’m not as familiar with this tort, but a quick read suggests that Fluke, should she sue, could recover here.
IANAL, but are you saying that Fluke could sue on the basis that Limbaugh violated her privacy, rather than that he defamed her? And that a privacy violation is easier to prove?
Even if this is true, it’s a fact that she neither said this, nor words to this effect: Limbaugh was lying when he claimed she’d said she was having so much sex she couldn’t afford it. The question seems to be whether he was lying in reckless disregard for the truth.
If he could show that, despite her never having made that claim, she actually WAS having so much sex that she couldn’t afford it, that sounds like a defense against the “reckless disregard” standard.
However, to refute that, he’d have to ask her, “Were you having so much sex that you couldn’t afford it?” to which she might answer, “nope,” and then where would Rush be? How would he go about showing that she was?
I think the relevant issue here would be whether or not Rush tried to find out if the claim was true. If you publish or say something without making any effort to verify it, then you could be said to have reckless disregard for the truth. He didn’t try to find out it was true, of course, because he had no way of knowing anything about her sex life and was just trying to insult her.
since ‘slut’, while a defamatory statement, is strictly subjective and has no legal basis, Fluke has no case if she were to sue him over that. ‘Prostitute,’ on the other hand is a legally defined term, which Ms. Fluke does not fit the requirements for, ergo, she has a case there.
